Courtesy costs nothing.
When I was a law student, one of the chaplains on campus was a former lawyer who had decided to try his hand at campus chaplaincy as a second career. This chaplain was a great resource, since he practiced law for decades and knew much about the actual practice of law (which was great since most of my professors hardly ever practiced!). This chaplain told me once that courtesy was almost as important to practicing law as legal principles since parties involved in legal matters often need to work with each other to move a case forward. One of the most basic courtesies is making sure that an adversary gets something important about a case so that they have a proper chance to review relevant materials and respond. Even though emailing documents that get mailed would seem like such a basic courtesy, far too few lawyers employ this simple courtesy in their practice, and this can make it more difficult to efficiently handle a case.
A decade or so ago, when I first began practicing law, it was less common to email courtesy copies of items that went out in the mail. This is because people were expected to be in their offices during business hours, so if something was mailed, it was pretty much assumed that they would get the materials in a reasonable time. Moreover, some people explicitly refused to accept service of items over email, and this might have turned off some lawyers from emailing relevant materials. In addition, scanning equipment and apps were far less common, which could have made emailing courtesy copies more difficult.
During the first stages of the COVID-19 pandemic, emailing courtesy copies of materials that were dropped in the mail (or just emailing documents in lieu of mailing items) became the norm. At the time, almost everyone was working from home to stop the spread of COVID-19. Attorneys knew that if they mailed items to office addresses it would likely be weeks, if not longer, before the attorney reviewed the documents because they were not in offices to receive materials. Moreover, people could not access their offices to print and mail items, and emailing such items was far more preferable.
Now that the COVID-19 pandemic is more in the rear-view mirror, some attorneys are seemingly returning to the practice of just mailing out items without emailing courtesy copies to adversaries or other counterparts. Perhaps this is because lawyers can expect that counsel will be in their offices during business hours like before the pandemic. However, emailing courtesy copies of documents that go out in the mail is the right thing to do for a number of reasons.
For one, emailing documents that go out in the mail ensures that your counterpart receives the documents sooner than if they were mailed. Of course, sometimes lawyers want to play games and ensure their adversary gets less time to review materials. However, receiving documents sooner can be important to a case. For instance, I was once owed discovery, and threatened to file a motion over the outstanding disclosure. My adversary claimed that he would send the materials by a given time, but I did not know if he actually produced the materials since I did not receive them by email. If he had just emailed me the materials, we could have avoided motion practice since I would have received the materials earlier.
In addition, when parties email documents, it is a lot harder for adversaries to claim that they never received a document. When materials are mailed, there are a lot of ways a person can argue that they never received a document. Conceivably, a document can be lost in the mail, or when it is received by a law firm, the document might not make it to the right person. I am sure everyone has a story about law office failure and how they never received important documents that were mailed to them.
However, emailing document beefs up the argument that a person received and reviewed a document. Now, of course, people might not receive emails for valid reasons. Some emails end up in spam filters, and I myself have missed some pretty important messages that ended up in my spam folder. In addition, email addresses can be deactivated, and some email addresses are reviewed by multiple parties so it is harder to say that any one party received a given message. Nevertheless, the addition of email makes it more probable that a party received materials and harder for someone else to show that they never received important documents.
All told, emailing documents attorneys drop in the mail is usually the right thing to do since this makes it easier for parties to receive materials, and parties can receive documents quicker. Moreover, emailing materials can have advantages for the sender as well.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
